In the Shadow of Korematsu

Democratic Liberties and National Security

Eric K. Yamamoto

Portrays the present-day significance of the Supreme Court's never overruled 1944 decision upholding the constitutional validity of the mass Japanese American exclusion leading to indefinite incarceration

Engages the American populace in shaping law and policy at the ground level by placing the courts' legitimacy on center stage

Links history to present-day controversies with an eye toward the future of United States democracy

Addresses multiple audiences targeting judges, lawyers and law and society scholars with careful sourcing and nuanced explanations while casting in explanatory language for non-law teachers and the concerned populace

In the Shadow of Korematsu

Democratic Liberties and National Security

Eric K. Yamamoto

Description

The national security and civil liberties tensions of the World War II mass incarceration link 9/11 and the 2015 Paris-San Bernardino attacks to the Trump era in America - an era darkened by accelerating discrimination against and intimidation of those asserting rights of freedom of religion, association and speech, and an era marked by increasingly volatile protests. This book discusses the broad civil liberties challenges posed by these past-into-the-future linkages highlighting pressing questions about the significance of judicial independence for a constitutional democracy committed both to security and to the rule of law. What will happen when those profiled, detained, harassed, or discriminated against under the mantle of national security turn to the courts for legal protection? How will the U.S. courts respond to the need to protect both society and fundamental democratic values of our political process? Will courts fall passively in line with the elective branches, as they did in Korematsu v. United States, or serve as the guardian of the Bill of Rights, scrutinizing claims of "pressing public necessity" as justification for curtailing fundamental liberties?

These queries paint three pictures portrayed in this book. First, they portray the present-day significance of the Supreme Court's partially discredited, yet never overruled, 1944 decision upholding the constitutional validity of the mass Japanese American exclusion leading to indefinite incarceration - a decision later found to be driven by the government's presentation of "intentional falsehoods" and "willful historical inaccuracies" to the Court. Second, the queries implicate prospects for judicial independence in adjudging Harassment, Exclusion, Incarceration disputes in contemporary America and beyond. Third, and even more broadly for security and liberty controversies, the queries engage the American populace in shaping law and policy at the ground level by placing the courts' legitimacy on center stage. They address how critical legal advocacy and organized public pressure targeting judges and policymakers - realpolitik advocacy - at times can foster judicial fealty to constitutional principles while promoting the elective branches accountability for the benefit of all Americans. This book addresses who we are as Americans and whether we are genuinely committed to democracy governed by the Constitution.

Part Four: Looking Back, Moving Ahead Chapter VIII: In the Shadow of Korematsu Chapter IX: In the Light of Justice - Concluding Thoughts

Table of Authorities

Index

In the Shadow of Korematsu

Democratic Liberties and National Security

Eric K. Yamamoto

Author Information

Eric K. Yamamoto is the Fred T. Korematsu Professor of Law and Social Justice at the William S. Richardson School of Law, University of Hawai`i. He is nationally and internationally recognized for his legal work and scholarship on civil procedure as well as national security and civil liberties, civil rights and social justice, with an emphasis on reconciliation initiatives and redress for historic injustice. Professor Yamamoto has received eight "outstanding law teacher awards," including the Outstanding Law Professor for 2006 from the nationwide Society of American Law Teachers. He has also received the University of Hawaii's highest honor - the Regents Medal for Teaching Excellence. He authored Interracial Justice: Conflict and Reconciliation in Post-Civil RightsAmerica (2000); Race, Rights and Reparation: Law and the Japanese American Internment (Second Edition, 2013), co-authored with Margartet Chon. He has published over 80 articles and book chapters. He has been a visiting professor at the University of California Berkeley School of Law, the Santa Clara Law School, and the City University of New York Law School. He has delivered many keynote addresses and distinguished lectures, including presentations at Berkeley, Michigan, and Harvard, and in Paris, Seoul, Hokkaido and Oxford.

In the Shadow of Korematsu

Democratic Liberties and National Security

Eric K. Yamamoto

Reviews and Awards

"Is the Korematsu case wrongly decided, yet capable of repetition? At a time when nativism and racism again parade in the disguise of national security, Eric Yamamoto (one of Fred Korematsu's lawyers) deftly illuminates that landmark's long shadow, unraveling its conflicting strands and calling for determined constitutional advocacy to follow active remembering." - Harold Hongju Koh, Sterling Professor of International Law, Yale Law School

"Building upon the contentious ways the Korematsu decision has been interpreted and applied by jurists and policy-makers, Eric Yamamoto gives us a clear and convincing perspective on how to strike the appropriate balance between national security exigencies and the protection of civil liberties. In a nuanced and multilayered account, he elucidates the circumstances when careful judicial scrutiny is required in security-liberty cases. This is about more than ethnicity, religion, or free speech. It is truly a book for our times when political claims of 'pressing public necessity' serve as justification for the curtailment of fundamental liberties." - Michael Omi, Professor, University of California, Berkeley

"My father Fred pursued his WWII and later coram nobis legal challenges to the government's falsely justified mass Japanese American exclusion and incarceration so that "it" would not happen again...to anyone else. Professor Yamamoto's compelling and insightful book - with its emphasis on people, courts and democracy - opens a path from historical injustice toward a more just America today and tomorrow." - BKaren Korematsu, Executive Director, Fred T. Korematsu Institute